Sovereignty originally referred to the political attributes of a European king. To be sovereign was to be "above everything." Sovereignty was thought to reside in the physical person of the ruler. The formation of the Swiss Confederation in 1291 and the United Provinces (now the Netherlands) in 1581 introduced a new kind of actor on the political stage: democratic republics that did not have individual dynastic rulers. The seventeenth-century Dutch jurist Hugo de Groot (or Grotius) and eighteenthcentury Swiss jurist Emmerich Vattel wrote pioneering legal treatises arguing that sovereignty resides collectively in society itself— that is, in the state and its citizens.
European ideas of sovereignty were culturally applicable to some Aboriginal American contexts. The agricultural city-states of the Mississippi Valley were governed by individual chiefs, as attested by early French descriptions of the city of Natchez. On the whole, however, the chiefs and councils of Indian tribes did not assert absolute lawmaking power over their people.
This was especially true in the Great Plains where, as John Moore has demonstrated for the Cheyennes, group boundaries and leadership remained flexible and could change from season to season. Households not only realigned themselves and chose new leaders within the nation, but they often left the nation altogether, for a season or many years, to travel and hunt with relatives in other nations. While the nation collectively defended a distinct territory with which it identified historically and ceremonially, its constituent families and clans, and its leadership, could be extremely fluid. When the camp crier announced that a respected man planned to break camp at dawn, households individually chose whether to follow him.
Great Plains nations were patches in a boundless, endlessly changing web of kinship relationships, landscapes, and languages. Mobility within this web was sufficient to prevent any persistent concentrations of political power. At the same time, solidarity was sufficient to repel intruders who lacked legitimate claims to local hospitality. Although Great Plains nations could mobilize a formidable military power, as the U.S. Army learned, their leaders generally lacked the institutional means or authority to regulate daily life.
To be sure, most Great Plains nations had "police societies," which could promote good behavior and intervene in disturbances within the camp. In extreme cases, camp police could confiscate malefactors' possessions or even banish them from the community altogether, but only to the extent such actions were supported by collective opinion. When internal disputes could not be resolved by means of negotiation and compromise between families, there was always the option of departure from the camp. A leader misguided enough to try to impose his will on the people would find himself without followers. Plains leaders earned their influence through courage, hard work, and generosity, and they retained it by setting a good example and by respecting the autonomy of others. They were "slow thinkers and silent eaters," as Severt Young Bear puts it so well.
It is accordingly difficult to translate "sovereignty" into Plains Indian languages without changing its meaning. In Lakota, Cree, and Blackfeet societies, for example, "sovereignty" is translated into phrases such as "we do things our own way" or "we are ourselves." This equates sovereignty with freedom rather than power. It has no reference to the existence or legitimacy of states, rulers, or human laws.
Early European explorers nevertheless frequently referred to chiefs as "kings" and showered them with presents in the manner of European court ceremony. What is more important historically and legally is the fact that British, French, Spanish, and Dutch colonists routinely made treaties with Indian nations for trade, military alliances, and the right to build settlements in tribal territories. Warfare and diplomacy with Europeans enhanced the status, wealth, and influence of individual Indian leaders within their own societies. The governance of Indian nations gradually became more centralized and coercive, adopting more and more the political culture of Europeans. Meanwhile, ironically, Europeans began to question whether Indian nations were entitled to be respected as sovereign and independent states—especially after signing treaties that placed them under the protection of European kings.
The first generation of American legal scholars turned to the writings of Grotius and Vattel to explain how a republic could claim to enjoy sovereignty in its diplomacy with European kings. John Marshall, who was secretary of state under President John Adams and then chief justice of the Supreme Court, applied Vattel's legal principles to Indian tribes in the case of Worcester v. Georgia (1832). Indian tribes continued to be "distinct, independent political communities, retaining their original natural rights," Marshall concluded, even where they had placed themselves under Europeans' protection by treaty. Although the Worcester decision made it clear that tribal sovereignty was limited only by Indians' consent—in a treaty— Marshall's earlier dictum in Cherokee Nation v. Georgia (1831) that Indian tribes are "domestic dependent nations" was resuscitated by late-nineteenth- century judges and has introduced a fundamental ambiguity into the issue of tribal sovereignty. More than a century later, Felix Cohen, a lawyer for the Bureau of Indian Affairs from 1933 to 1948, coined the term "residual sovereignty" to describe the political authority of Indian tribes, and it has continued to be used by lawyers and judges in the United States.
The application of the principle of sovereignty to Native American tribes has changed significantly over time. According to Worcester, the sovereignty of an Indian tribe is limited only by the express terms of its treaties with the United States. From 1890 to 1903, however, the U.S. Supreme Court upheld a number of federal laws that interfered with Indian property in violation of treaties, reasoning that Congress has superior sovereignty or "plenary power" over Indians. Finally, in Oliphant v. Suquamish Indian Tribe (1978), the Supreme Court ruled that accepting the protection of the United States implicitly stripped Indian tribes of political powers that are "inconsistent with their status" as Indians.
As a result of court decisions, the sovereignty of Native American tribes today is limited by what the tribes surrendered by treaty, what Congress has imposed on tribes by legislation, and what the courts consider to be "inconsistent with their status." Depending on the way particular courts interpret treaties and laws, Indian tribes' residual sovereignty can be very great, or nearly nonexistent.
In Canada, a constitutional monarchy in which the queen is the sovereign and head of state, the courts have not applied the term sovereignty to Indian nations. About half of the territory of Canada was acquired through Indian treaties made in the name of the Crown between 1724 and 1929, however, and most of the rest has been acquired through "modernday treaties" made since 1975. Since the 1970s, moreover, Canada's Indian nations have insisted that, although they respect the Crown, they possess "unsurrendered sovereignty" of their own. The government of Canada continues to resist this argument, although it has acknowledged as a matter of national policy that Indian nations possess an "inherent right to self-government."
Canada amended its national constitution in 1982 to include, among other changes, a declaration that "the existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed." Indian leaders argue that sovereignty and self-government are Aboriginal rights. This argument has not yet been tested in the Supreme Court of Canada, but it was strongly supported by the Royal Commission on Aboriginal Peoples, a seven-member national policy review body that was established in 1992 and published its final report four years later.
Sovereignty has taken on new meanings for Indian nations in the twentieth century as a result of wider economic and cultural changes and conflicts. The process of centralization of power, which began during the treaty-making period, was enhanced by legislation creating elected tribal lawmaking bodies–in the United States by the Indian Reorganization Act in 1934 and in Canada by amendments to the Indian Act in 1951. Federal funding of tribal government operations, mining of tribal lands, and (in the United States) profits from tribally owned gambling casinos have given many Indian tribal governments large infusions of cash and have turned tribal leaders into corporate managers and employers. Jurisdictional disputes with surrounding state and provincial governments have forced the tribes to assert exclusive territorial lawmaking and lawenforcing powers through the courts. More and more, Native American tribes are exercising sovereignty in the European sense of the word.
At the same time, U.S. and Canadian Indian nations no longer insist on complete independence, but rather a limited sovereignty similar to that of individual states within the American federal system, or individual provinces in Canada's confederation. They tend to accept the inevitability of some degree of congressional (or parliamentary) power over their lives and responsibility for their well-being, while demanding the greatest possible authority over their own territories and citizens. In Canada, this kind of arrangement has sometimes been described as "shared sovereignty," a cooperative political partnership under a freely agreed division of labor.
Although similar political changes have been taking place in Indian communities throughout the United States and Canada, some conflicts over power and resources have been specific to the Great Plains. Plains agriculture has long been based on economies of scale—that is, farming and ranching as much acreage as possible as a single unit. There was considerable pressure on federal officials to open large Indian reservations to leasing or permanent settlement, once the surrounding lands had been fenced. The mechanization of agriculture and soaring grain prices during World War I added to the demand for more acreage. The U.S. and Canadian governments both responded by facilitating the leasing of land within Indian reservations and the diminishment of reservation boundaries.
In the United States, Indian tribes have struggled unsuccessfully to maintain jurisdiction over all of the lands within their original reservation boundaries, including non-Indian settlements. The Supreme Court has taken the view that Congress intended to break up the larger Plains Indian reservations rather than place settlers under the authority of Indian governments. Several Sioux reservations have been considerably reduced (or "disestablished") as a result. The most recent Supreme Court decision, South Dakota v. Yankton Sioux Tribe (1998), concluded that Congress intended to dissolve the Yankton Sioux Indian Reservation when it purchased land for settlers from the tribe in 1892. An earlier decision, Brendale v. Confederated Tribes (1989), ruled that Indian governments lack authority over predominantly non-Indian settlements inside Indian reservations.
In Canada, leasing and cutoffs are the subjects of hundreds of unresolved land claims in the Prairies. Although the Canadian federal government has accepted responsibility for settling these claims on a case-by-case basis through negotiations, Indians have criticized delays and inadequate compensation. In Guerin v. The Queen (1985), Canada's Supreme Court ruled that federal officials have a "fiduciary responsibility" to manage Indian land prudently for Indians' benefit, and that they must pay for any losses attributable to mismanagement. The Royal Commission on Aboriginal Peoples called for the establishment of a tribunal, like the former U.S. Indian Claims Commission, to expedite the processing of land claims.
Meanwhile, water has been replacing land as the main source of friction between Indian tribes and their non-Indian neighbors. Irrigation has surpassed mechanization as the competitive edge in farming the Great Plains, and limited supplies of water must be rationed between long-established non-Indian farms and Indian reservations. In a 1908 decision, Winters v. United States, the U.S. Supreme Court reasoned that Congress necessarily intended to include su.cient water for Indian farming when it set land aside as reservations. Indian tribes in the Missouri and Colorado River watersheds have used this legal principle to gain ownership of water and to build their own irrigation systems. Their right to sell unneeded water back to non-Indians is now in dispute.
Irrigation promises to be a growing source of conflict over water allocation in the Saskatchewan River basin, comprising much of southern Alberta and central Saskatchewan. Special Indian water rights have not yet been recognized by Canadian courts, however. To establish an "aboriginal right," according to Canada's Supreme Court in R. v. Van der Peet (1997), Indian nations would need to prove that water played a significant role in Aboriginal culture, and that it was neither expressly surrendered through treaty nor explicitly expropriated by Parliament. Since most of the Indians of the Saskatchewan River basin were originally hunters who only began farming and ranching after settling on reserves in the 1880s, it may be difficult for them to convince the courts that they enjoy an Aboriginal right to water.
The growing importance of water in the struggle over Indian sovereignty in the Great Plains highlights the issue of change in Indian nations' political organization and social values. In the arid Plains, water was an object of great reverence and careful stewardship. Important ceremonies, sacred bundles, and pipes were dedicated to water and water dwellers, such as the "beaver bundles" among the Blackfoot and Plains Crees. People exercised collective stewardship of water and shared its use; they did not contemplate altering its flow or allowing anyone to enjoy special privileges. Many Indian governments today associate water rights with large-scale reclamation projects, construction jobs, centrally managed agribusiness, cash flow, and political power.
In the Great Plains context, then, sovereignty has come to be associated more strongly with the power of institutions than with the freedom and responsibility of members of society. To a large extent, this shift in perspective is an understandable and justifiable response to continuing encroachments by Europeans and their governments. Indian nations built statelike institutions and greater power because they needed power to defend themselves. But the power to defend is also potentially the power to oppress people and to disrupt ecosystems. Acquiring sovereignty in the European sense brings new kinds of choices and responsibilities. Many contemporary North American Indians would share the critical viewpoint of Meskwaki (Sauk and Fox) poet Ray Young Bear, who wrote, "By replacing the window of the Cosmic Earth Lodge with aluminum panelling, we encouraged a sudden gust of wind to tear it apart, which made us cringe as the other elements gathered around us in force."
See also WATER: Winters Doctrine.
Russel BarshUniversity of Lethbridge
Moore, John H. The Cheyenne Nation: A Social and Demographic History. Lincoln: University of Nebraska Press, 1987.
Young Bear, Ray A. Remnants of the First Earth. New York: Grove Press, 1996.
Young Bear, Severt, and R. D. Theisz. Standing in the Light: A Lakota Way of Seeing. Lincoln: University of Nebraska Press, 1994.